In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1395
RICHARD BROOKS,
Plaintiff-Appellant,
v.
CITY OF KANKAKEE, ILLINOIS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:17-cv-02265-CSB-EIL — Colin S. Bruce, Judge.
____________________
ARGUED DECEMBER 2, 2020 — DECIDED AUGUST 4, 2021
____________________
Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Richard Brooks, an African Ameri-
can police officer, made statements on multiple occasions
complaining that his employer, the City of Kankakee, Illi-
nois, favored white officers. The City, viewing the state-
ments as false and disparaging, issued a written reprimand
letter to Mr. Brooks ordering him to stop making such
statements and warning him that he faced discipline up to
and including termination should he engage in further pub-
2 No. 20-1395
lic disparagement.
Mr. Brooks filed a complaint in the district court against
the City alleging that it had retaliated against him, in viola-
tion of Title VII of the Civil Rights Act of 1964, by failing to
promote him and by issuing to him a reprimand letter after
he had engaged in protected activity. The City filed a motion
for summary judgment. In response, Mr. Brooks attempted
to introduce a new claim alleging that the City’s promotional
policies had a disparate impact on minority officers. The dis-
trict court dismissed Mr. Brooks’s disparate impact claim
and granted summary judgment to the City on his retalia-
tion by failure to promote claim. The court, however, denied
summary judgment on Mr. Brooks’s retalia-
tion-by-reprimand claim, concluding that a genuine issue of
material fact remained as to whether Mr. Brooks’s state-
ments constituted protected activity.
Mr. Brooks’s retaliation-by-reprimand claim proceeded
to trial, and a jury returned a verdict for the City. The court
denied Mr. Brooks’s motions for judgment as a matter of
law. Mr. Brooks now appeals, contending that no reasonable
jury could have found for the City and that his disparate
impact claim was improperly dismissed. In the alternative,
he argues that the district court misstated the law in its jury
instructions and requests that we remand for a new trial. We
now affirm the district court’s judgment.
I
BACKGROUND
A.
Mr. Brooks is an African American patrolman for the
Kankakee Police Department. During the relevant period,
No. 20-1395 3
the Department consisted of about sixty-seven officers,
which included twelve sergeants, five lieutenants, and a pa-
trol commander, an investigations commander, a deputy
chief, and a chief. Larry Regnier was Deputy Chief from
2000 to 2010, and then Chief from 2010 until May 1, 2016.
Robin Passwater was Investigations Commander from 2009
to 2015, Deputy Chief from 2015 to early 2016, Acting Chief
for a few months in 2016, and is currently a lieutenant for the
Department.
1.
The Kankakee Police Department promotes officers to
sergeant through a competitive examination process. The
ranked results of the examination are publicly posted on
1
what is colloquially called “the list.” Illinois state law re-
quires that promotions be made from the three highest rank-
ing candidates. See 65 ILCS 5/10-2.1-15. The Chief only may
promote someone when a position becomes open. When a
candidate is promoted off the list, the remaining candidates
move up a spot. The list remains in effect until it is replaced
by a new list. Relevant to this lawsuit are the 2011 List, is-
sued November 14, 2011; the 2014 List, issued December 4,
2014; and the 2017 List, issued January 8, 2018.
Stanard and Associates is an independent company that
prepared and administered promotional exams for the De-
partment. In 2011 and 2014, a candidate’s score was based on
a written test of 100 multiple-choice questions (40%); an oral
exam (30%); merit points (15%); and education, community
1 R.27 at 5.
4 No. 20-1395
service, and seniority (5% each). The oral exam was graded
by a panel consisting of two Department members and three
members of outside police departments. Merit points were
based on evaluations from every Department supervisor.
Between 2011 and 2017, the Department promoted five
patrolmen to sergeant. All five were among the top three on
the relevant list; two of the five were African American.
Mr. Brooks never ranked within the top three candidates
and therefore never qualified for a promotion. In 2011,
Mr. Brooks ranked seventh of seventeen candidates. Jeff
Martin, a white officer who ranked first, was the first to be
promoted off the 2011 List. The next top three candidates
were Paul Berge (Caucasian), Scott Halper (Caucasian), and
Michael Sneed (African American).
In 2012, Officer Berge was caught buying and using ille-
gal drugs while working on a drug task force. Upon discov-
ering Officer Berge’s activities, Chief Regnier removed him
from the drug unit, imposed a thirty-day unpaid suspension,
and publicly passed him for promotion to sergeant, despite
his ranking first on the 2011 List. Michael Sneed, third on the
list, was promoted to sergeant next over the other two white
officers.
Mr. Brooks placed ninth of sixteen candidates on the 2014
List. The top three candidates of the 2014 exam were Paul
Berge (Caucasian), Scott Halper (Caucasian), and Jose Mar-
tinez (Hispanic). Paul Berge was the first person promoted
off the 2014 List in early 2016. A new list was circulated in
January 2018 from the 2017 testing cycle. The top three can-
didates were Bradford Latham (Caucasian), Michael Coash
(Caucasian), and Steven Hunter (African American). Steven
No. 20-1395 5
Hunter was promoted at the next opening. Mr. Brooks did
not participate in the 2017 exam.
2.
a.
In 2003, Mr. Brooks and four other African American of-
ficers sued the City of Kankakee for racial discrimination
(“the Baptist litigation”). The parties settled, resulting in an
“Agreed Judgment Order,” which provided for the creation
of a “Blue Ribbon Committee” that would review the De-
2
partment’s hiring and promotional testing policies. The
Agreed Judgment Order was to “remain in full force and ef-
fect through January 31, 2011 or for a period of two promo-
tional examinations following the entry of the order, which-
3
ever occurs last.” The court entered the Agreed Judgment
Order on September 22, 2005, and the order expired in 2011.
At a 2014 Equal Employment Opportunity Commission
hearing, 4 Mr. Brooks made references to a “consent decree”
that the City was under, in reference to the Baptist litigation.
He additionally alleged that there were “‘officers that were
5
on drugs’ and ‘nothing was being done.’”
2 Appellant’s Supp. App’x 4–5.
3 Id. at 6.
4 The parties agree that it is unclear whether Mr. Brooks made these
statements before the Equal Employment Opportunity Commission or
the Illinois Department of Human Rights, or whether he made the state-
ments related to his own charge or someone else’s charge. The parties
agree that the uncertainty or difference is immaterial.
5 R.44 at 49.
6 No. 20-1395
When Chief Regnier heard Mr. Brooks’s statements about
the existence of a consent decree, he told Mr. Brooks that
there was no such consent decree. At trial, Mr. Brooks testi-
fied that he had thought that the Agreed Judgment Order
and a consent decree were “synonyms” and “very similar”
6
and that his characterization was a mistaken reference.
b.
On February 19, 2016, Mr. Brooks and Chief Regnier
were in the Kankakee Mayor’s office for a hearing on an un-
related reprimand that Mr. Brooks received for violating a
Department pursuit policy. During this meeting, Mr. Brooks
complained to the Mayor about the absence of an investiga-
tion into misconduct by Officer Berge. Mr. Brooks informed
the Mayor that, four years prior, Officer Berge had crashed
his police vehicle while leaving a tavern and misreported the
crash as a “hit and run.” Mr. Brooks alleged that nothing
had happened to Officer Berge and that there had been a
cover-up.
As a result of Mr. Brooks’s statements to the Mayor, the
City investigated the 2012 “hit and run” incident in 2016. Af-
ter the investigation, Officer Berge acknowledged that
in the early morning hours, he wrecked his
personal vehicle into the side of a commercial
building …, causing over $500.00 in damage to
his vehicle, while under the influence of alco-
hol, and un-prescribed steroids, and left the
scene without filing a police report, and that
6 Id. at 87.
No. 20-1395 7
police report was made later that same day as
7
an unknown hit and run accident.
Officer Berge was given a second thirty-day unpaid sus-
pension, one of the highest forms of discipline an officer can
8
receive short of being fired. In addition, Officer Berge
signed a “Last Chance Agreement” which stated that further
violations of Department policy would be grounds for im-
9
mediate and automatic termination.
Both Chief Regnier and Lieutenant Passwater testified
that prior to 2016, Mr. Brooks had repeatedly referred to a
police cover-up, but had “refused to tell [them]” who was
involved. 10 Lieutenant Passwater testified that he had told
Mr. Brooks that “if he knew about misconduct, the only way
that the administration would know about it is if somebody
told [them] and that he needed to tell [them] what he knew
about it.” 11 Additionally, Department rules and regulations
“require[d] officers to report misconduct to the administra-
tion.” 12 At trial, Mr. Brooks testified that he learned of the
hit-and-run cover-up around 2013. Nevertheless, Mr. Brooks
did not divulge this information until 2016.
7 Appellant’s Supp. App’x 7.
8 See R.44 at 176.
9 Appellant’s Supp. App’x 7.
10 R.44 at 68.
11 R.45 at 58.
12 Id.
8 No. 20-1395
c.
On April 12, 2016, Mr. Brooks spoke out again about Of-
ficer Berge’s promotion to sergeant, this time at a Kankakee
Police and Fire Commission public meeting. Mr. Brooks
complained that Officer Berge had been caught using drugs
and that “nothing had ever happened to him,” 13 that he
wrecked a car and the incident was covered up, and that Of-
ficer Berge was still promoted to sergeant, in violation of a
consent decree. Lieutenant Passwater, who was in attend-
ance, testified to Mr. Brooks’s statements at the meeting:
He stood up and said … that the department
was under a consent decree, and they weren’t
following that in relation to promotions being
handled. He also stated that … officers had
been promoted that had been using drugs and
were caught driving drunk or DUI or involved
in other activities that had been against De-
14
partment policy.
At trial, Mr. Brooks testified that he made these statements
because he felt he had a “civic duty to report any illegal ac-
tivity that was being performed by any officer; and if [he]
felt that it was not being punished or … that the people in
charge was covering it up, [he] felt [he] had a duty to report
15
it.”
13 R.44 at 64.
14 R.45 at 52.
15 R.44 at 99–100.
No. 20-1395 9
On April 25, 2016, Chief Regnier issued a written repri-
mand letter to Mr. Brooks for “making disparaging remarks
16
about the Police Department.” The letter alleged three in-
stances of such statements: (1) at the EEOC hearing in 2014;
(2) at the discipline hearing in the Mayor’s office on Febru-
ary 19, 2016; and (3) at the Kankakee Police and Fire Com-
mission meeting on April 12, 2016. The reprimand letter
stated:
During these instances you have made state-
ments that are not true, and in fact damaging,
to not only the Police Department, but your fel-
low officers and yourself. At the EEOC hearing
you made reference numerous times about a
Consent Decree the City was under from your
law suit. No Consent Decree was ever entered.
The only agreement coming from the law suit
was an agreement to use a “Blue Ribbon
Committee” for the purpose of providing ad-
vice on the next promotional process. The City
did not lose the law suit and certainly no
judgement was entered against the City. Your
representations are factually false.
You also have made statements about a specif-
ic officer’s drug use, his promotion and an ac-
cident in which he was involved. All of these
incidents have been dealt with, and adjudicat-
ed by the Administration. The discipline ad-
ministered by the Department to another of-
16 Appellant’s Supp. App’x 1.
10 No. 20-1395
ficer is, quite frankly, none of your business or
anyone else’[s] for that matter, except for the
officer involved. However, you may be assured
that the matter was handled with proper disci-
pline involved, contrary to your inappropriate
public statements.
You have taken it upon yourself to profess
these inaccurate facts and stories to which you
have no factual basis except what you think or
what someone else may have told you. The in-
stances you have alleged took place a number
of years ago and yet you make public state-
ments as if the incidents have recently hap-
pened.
You make these inaccurate and false claims at
times that are beneficial only to you and have
no bearing on the reason for the hearing or
public meeting you are attending. You also use
ambush type tactics to make these claims as to
ensure that your claims can not be rebutted. In
essence you are waging a battle against your
own peers and damaging the Police Depart-
17
ment as a whole.
Accordingly, Chief Regnier found Mr. Brooks to be in gross
violation of numerous Department policies and proce-
17 Id. at 1–2.
No. 20-1395 11
dures. 18 The Reprimand concluded by ordering Mr. Brooks
“to cease any further public disparagement of the Kankakee
Police Department or criticism of other police officers includ-
ing the statement of inaccurate information, in public, or
19
private.” A future violation would be grounds for
Mr. Brooks’s discipline “up to and including termination”
20
with the Department.
B.
Mr. Brooks filed a complaint against the City alleging re-
taliation for engaging in protected activity in violation of Ti-
tle VII. Mr. Brooks alleged that, after the Baptist litigation,
18 Specifically, Chief Regnier found Mr. Brooks in violation of sections
340.3.2(f), 340.3.5(ac), and 340.3.5(af) of the Department’s policies and
procedures:
Section 340.3.2(f) requires KPD employees to report any
act by him/herself or another that could result in crimi-
nal prosecution or discipline. Section 340.3.5(ac) prohib-
its any off-duty conduct which any employee knows or
should reasonably know is unbecoming a member of the
KPD, which is contrary to good order, efficiency and
morale, or which tends to reflect unfavorably on the De-
partment or its officers. Section 340.3.5(af) prohibits giv-
ing false or misleading statements or misrepresenting or
omitting material information to a supervisor, or any
other person in a position of authority, in connection
with any investigation or any reporting of depart-
ment-related business.
R.27 at 13; see also Appellant’s Supp. App’x 2.
19 Appellant’s Supp. App’x 3.
20 Id.
12 No. 20-1395
the City retaliated against him, “including repeatedly refus-
21
ing to promote plaintiff to the position of sergeant.” In ad-
dition, Mr. Brooks contended that the written reprimand is-
sued on April 25, 2016, “threatened plaintiff with discipline
‘up to and including termination’ if he complained about
disparate treatment … or if plaintiff made ‘disparaging re-
22
marks about the Police Department’ to the EEOC.”
The City moved for summary judgment. On Mr. Brooks’s
failure-to-promote claim, the City maintained that
Mr. Brooks never placed within the top three candidates and
therefore never met the Department’s legitimate expecta-
tions for promotion to sergeant. In addition, no similarly sit-
uated, non-African American employee was treated better
than Mr. Brooks. The City next contended that Mr. Brooks’s
retaliation claim was meritless and speculative, explaining
that the “reprimand was not given for Brooks’ complaints
about discrimination, but Brooks’ false statements in doing
so,” and that “he was not ordered to stop objecting to racial
discrimination, but to stop making specific false and dispar-
23
aging statements.”
In response, Mr. Brooks reiterated that Chief Regnier is-
sued the reprimand letter because Mr. Brooks had opposed
race discrimination by the Department. In his summary
judgment response, Mr. Brooks, for the first time, introduced
a disparate impact challenge to the oral interview compo-
21 R.1 ¶ 6.
22 Id. ¶ 8.
23 R.16 at 25.
No. 20-1395 13
nent of the promotional exam as a “built-in headwind” for
24
minority groups.
The district court agreed with the City that Mr. Brooks
failed to make out a prima facie case on his retaliation claim
related to promotions and granted summary judgment in
favor of the City. The court also declined to consider
Mr. Brooks’s newly introduced disparate impact claim. The
court first distinguished “disparate impact” claims from
“disparate treatment” claims, and ruled that to make a dis-
parate impact claim, Mr. Brooks needed to have “plead[ed]
that a specific, facially neutral employment practice caused a
significantly disproportionate adverse impact based on a
25
protected factor.” Mr. Brooks, however, made no disparate
impact claim in his complaint, but alleged retaliation only.
Moreover, prior to the response to summary judgment, there
had been no filings or other suggestions that he was pursu-
ing a disparate impact claim. The court, therefore, rejected
his attempt to amend his complaint in this manner.
The court, however, denied summary judgment on
Mr. Brooks’s retaliation by reprimand claim. According to
the court, the written reprimand qualified as an adverse em-
ployment action, and Mr. Brooks had come forward with
sufficient evidence to raise a jury question as to whether his
criticisms of the Department were reasonable, good faith
complaints about preferential treatment on the basis of race.
24 R.19 at 30.
25 R.27 at 27.
14 No. 20-1395
C.
1.
The district court conducted a two-day trial on
Mr. Brooks’s retaliation-by-reprimand claim. At the close of
the City’s evidence, Mr. Brooks moved for judgment as a
matter of law. In denying his motion, the court stated:
This is going to be a credibility fight. This
comes down to credibility decisions. This is ex-
actly why we have jury trials. The jury’s going
to have to decide—well, a number of issues re-
lated to credibility, intent, motive—all of those
issues—which is not for the Court to decide at
this time, certainly not when so many things
are in dispute. The motion, therefore, is de-
26
nied.
The parties then proceeded to discuss jury instructions.
The court referred to Seventh Circuit Pattern Civil Jury In-
struction 3.02 Committee Comment (c), used when the ques-
tion of what constitutes protected activity is contested, as a
template. 27 To account for the three separate statements not-
26 R.45 at 71.
27 Seventh Circuit Pattern Civil Jury Instruction 3.02 Committee Com-
ment (c) reads:
c. Good Faith Belief: In many cases, the question of what
constitutes a protected activity will not be contested.
Where it is, however, the instruction should be revised
as follows:
(continued … )
No. 20-1395 15
ed in the reprimand letter, Mr. Brooks proposed a disjunc-
tive instruction requiring the jury to find that only one of the
28
statements was protected. The district court, however, in-
( … continued)
Plaintiff claims that he was [adverse employment ac-
tion] by Defendant because of [protected activity]. To
succeed in this claim, Plaintiff must prove two
things by a preponderance of the evidence:
1. His [protected activity] was based on a reasona-
ble, good faith belief that [describe Plaintiff’s belief
regarding his protected activity, e.g., that he was
fired because of his race]. This does not, however,
require Plaintiff to show that what he believed
was correct.
2. Defendant would not have [adverse employment
action] Plaintiff if he had [not engaged in protected
activity] but everything else had been the same.
28 Mr. Brooks proposed the following disjunctive jury instruction:
To determine whether any of the statements plaintiff
made to the Police and Fire Commission, at the Mayor’s
office, and to the Illinois Department of Human Rights,
were activity protected by statute, you should consider
whether plaintiff was trying to make the police depart-
ment look bad or whether plaintiff was speaking in op-
position to preferential treatment on the basis of race.
If you find … that Plaintiff has proved this by a prepon-
derance of the evidence any of the statements he made to
the Police and Fire Commission, at the Mayor’s office, and to
the Illinois Department of Human Rights, were activity pro-
tected by statute, then you find for Plaintiff. However, if you
find that Plaintiff did not prove this by a preponderance
of the evidence, then you must find for defendant.
R.30 at 38–39 (emphasis added).
16 No. 20-1395
structed that, for Mr. Brooks to succeed, he had to prove (1)
all three statements were based on a reasonable good-faith
belief that Officer Berge was treated better because of his
race, in violation of a court order related to employment
practices; and (2) the Department would not have issued the
reprimand letter if Mr. Brooks had not made any of the three
29
statements.
29 The district court’s jury instruction was as follows:
Plaintiff claims that he was issued a disciplinary letter
by Defendant because of his statements to the EEOC in
2014, his statements in the Mayor’s office in February
2016, and his statements at the Police and Fire Commis-
sion Meeting in Spring 2016. To succeed in this claim,
Plaintiff must prove two things by a preponderance of
the evidence:
1. His statements to the EEOC in 2014 and his state-
ments in the Mayor’s office in February 2016 and his
statements at the Police and Fire Commission Meet-
ing in Spring 2016 were based on a reasonable, good
faith belief that Paul Berge was treated better be-
cause of his race and that the KPD was violating a
court order related to employment practices. This
does not, however, require Plaintiff to show that
what he believed was correct.
2. Defendant would not have issued the disciplinary
letter to Plaintiff if he had not made the statements
to the EEOC in 2014 or made the statements in the
Mayor’s office in February 2016 or made the state-
ments at the Police and Fire Commission Meeting in
Spring 2016 but everything else had been the same.
In deciding Plaintiff's claim, you should not concern
yourselves with whether Defendant’s actions were wise,
(continued … )
No. 20-1395 17
Mr. Brooks objected to the court’s conjunctive instruction
because “any one of those three [statements] could be a retal-
iatory act”; therefore, the disjunctive “or” should have been
30
used. In the City’s view, because “the disciplinary letter
was issued after all three statements and because of all three
statements,” allowing the jury to find for Mr. Brooks on the
basis that any one statement was made in good faith would
31
present a but-for causation issue. The court agreed with the
City, explaining:
The first paragraph now reads the way it does
because … it cannot be that someone could
make two bad-faith statements, one good-faith
statement, and then the good-faith statement
( … continued)
reasonable, or fair. Rather, your concern is only whether
Plaintiff has proved Defendant issued a disciplinary let-
ter to Plaintiff because of his statements to the EEOC in
2014 or his statements in the Mayor’s office in February
2016 or his statements at the Police and Fire Commission
Meeting in Spring 2016, and whether those statements
were based on a reasonable, good faith belief that Paul
Berge was treated better because of his race and that the
KPD was violating a court order related to employment
practices.
R.40 at 18–19 (emphasis added).
30 R.45 at 84.
31 Id. at 83.
18 No. 20-1395
would shield them from any type of discipline.
32
So that’s why I used that in the conjunctive.
As to Mr. Brooks’s position that any one of the three state-
ments could be the basis for a single, retaliatory action, the
court explained that “the disciplinary letter encompasses all
33
three events in one letter.” The court reasoned that if a
good-faith and bad-faith statement were made in the same
conversation, the jury could find properly that the activity
was not protected. With the court’s conjunctive instruction,
the jury returned a verdict for the City.
2.
Mr. Brooks filed a renewed motion for judgment as a
matter of law and a motion for a new trial. He first contend-
ed that the undisputed evidence showed that he made the
three statements in good faith and that he was therefore enti-
tled to judgment as a matter of law. The court concluded
that Mr. Brooks took too narrow of a view of the evidence.
For example, at issue was not that Mr. Brooks had said that
an officer was using drugs, but specifically that he had said,
untruthfully, that nothing ever happened to him. Similarly,
at issue was not that Mr. Brooks had made statements about
the police cover-up of Officer Berge’s car crash, but that
Mr. Brooks testified that he had learned about the car crash
in 2013 but only came forward with Officer Berge’s name in
2016 at the Mayor’s office. Finally, Mr. Brooks continued to
make public statements about a consent decree, even after
32 Id. at 97–98.
33 Id. at 102.
No. 20-1395 19
having been told on multiple occasions that there was no
consent decree against the City. Thus, “[t]his case was sub-
mitted to a jury because the credibility and motivations of
34
the witnesses were squarely at issue.” Concluding that a
reasonable jury could have found for the City, the court de-
nied Mr. Brooks’s renewed motion for judgment as a matter
of law.
Mr. Brooks next requested a new trial, contending that
the jury instructions misstated the law and were confusing
to the jury. In particular, Mr. Brooks submitted that the use
of the conjunctive “and” was legal error, and that the jury
did not need to find that each of his three statements were
made in good faith. The City responded that the disjunctive
“or” was proper: even if the jury found that one statement
was made in good faith, it could not negate a bad-faith
statement. Without proving all three statements were made
in good faith, the City continued, Mr. Brooks would fail the
but-for causation requirement of Title VII. The court again
agreed with the City because the reprimand letter was a sin-
gle retaliatory act that was issued because of three instances
of particular statements by Mr. Brooks. Because Mr. Brooks
pleaded only a single count of retaliation and the unitary
reprimand letter referenced all three statements, the court
concluded that the jury had to find that all three statements
were made in good faith.
The court next rejected Mr. Brooks’s claim that the court
misstated the law in instructing the jury to find that
Mr. Brooks had a “reasonable, good faith basis” for his
34 R.54 at 6.
20 No. 20-1395
statements. The court noted both that we had approved the
use of a similar instruction in Fine v. Ryan International Air-
lines, 305 F.3d 746 (7th Cir. 2002), and that the Seventh Cir-
cuit Pattern Civil Jury Instructions expressly called for using
such language.
The court entered judgment on February 20, 2020.
Mr. Brooks now appeals.
II
35
DISCUSSION
Mr. Brooks asks that we review the district court’s
posttrial denials of his motions for judgment as a matter of
35 At oral argument, the panel raised the question of whether
Mr. Brooks had standing. We also directed the parties to file supple-
mental briefs addressing the question of whether Mr. Brooks has stand-
ing. See Schirmer v. Nagode, 621 F.3d 581, 584 (7th Cir. 2010) (“Because
standing is an essential and unchanging part of the case-or-controversy
requirement of Article III, we must consider this jurisdictional issue even
though the parties have not raised it.” (internal citation and quotations
omitted)). Upon consideration of the parties’ submissions and further
study of the record, we are satisfied that Mr. Brooks may press his alle-
gation that the City retaliated against him for engaging in protected ac-
tivity when it issued its letter of reprimand and had it placed in his em-
ployment file. The harm to him is neither hypothetical nor conjectural. It
is present and real: Because of the City’s action, he is now an adjudicated
recidivist, and the City’s action of which he complains here places him in
special jeopardy of severe sanctions, including dismissal. See TransUnion
LLC v. Ramirez, 141 S. Ct. 2190 (2021). The letter therefore constituted a
“concrete and particularized” injury that is “actual or imminent, not con-
jectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotation marks omitted). A judgment in his favor would vin-
dicate “a legally protected interest.” Id.
No. 20-1395 21
law and for a new trial. In addition, he requests that we rein-
state his disparate impact claim. We discuss each in turn.
A.
1.
We review a district court’s denial of a motion for judg-
ment as a matter of law de novo, viewing evidence in the
light most favorable to the nonmoving party. Fabick, Inc. v.
JFTCO, Inc., 944 F.3d 649, 656 (7th Cir. 2019). We evaluate
whether any reasonable jury could have reached the same
conclusion. Id. (citing Liu v. Price Waterhouse LLP, 302 F.3d
749, 754 (7th Cir. 2002)).
Title VII’s antiretaliation provision states, in relevant
part:
It shall be an unlawful employment practice
for an employer to discriminate against any of
his employees … because he has opposed any
practice made an unlawful employment prac-
tice by this subchapter, or because he has made
a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or
hearing under this subchapter.
42 U.S.C. § 2000e-3(a).
Mr. Brooks must demonstrate that “(1) [he] engaged in a
statutorily protected activity; (2) the [defendant] took a ma-
terially adverse action against [him]; and (3) there existed a
but-for causal connection between the two.” Abrego v. Wilkie,
907 F.3d 1004, 1014 (7th Cir. 2018) (second alteration in orig-
inal) (citing Burton v. Bd. of Regents of Univ. of Wis. Sys., 851
F.3d 690, 695 (7th Cir. 2017)).
22 No. 20-1395
At trial, Mr. Brooks’s retaliation claim hinged on whether
36
his statements constituted statutorily protected activities.
Specifically, under the district court’s instructions, the jury
had to decide whether Mr. Brooks “had a good-faith, objec-
tively reasonable belief” that he was opposing a violation of
Title VII when he made each of the three statements. Fine,
305 at 753. On this element, we “ha[ve] consistently stated
that utterly baseless claims do not receive protection under
Title VII.” Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th
Cir. 2004). We explained:
The purpose of requiring that plaintiffs reason-
ably believe in good faith that they have suf-
fered discrimination is clear. Title VII was de-
signed to protect the rights of employees who
in good faith protest the discrimination they
believe they have suffered and to ensure that
such employees remain free from reprisals or
retaliatory conduct. Title VII was not designed
to “arm employees with a tactical coercive
weapon” under which employees can make
36 Mr. Brooks is inaccurate in stating that “none of [the three elements to
his retaliation claim] were contested at the trial in this case.” Appellant’s
Br. 19. The court, in denying the City summary judgment, concluded
that “[w]hether Plaintiff was intentionally lying about the extent of
Berge’s punishment to make the police department look bad or was
making an honest public appeal in opposition to preferential treatment
on the basis of race is a disputed material fact.” R.27 at 33. Although the
parties did not dispute the court’s findings that the reprimand letter was
“materially adverse” and that there was a causal link between
Mr. Brooks’s statements and the reprimand letter, the very issue at trial
was whether his statements were statutorily protected.
No. 20-1395 23
baseless claims simply to “advance their own
retaliatory motives and strategies.”
Id. Unless a claim is “completely groundless[,] … [t]here is
nothing wrong with disciplining an employee for filing friv-
olous complaints.” McDonnell v. Cisneros, 84 F.3d 256, 259
(7th Cir. 1996).
On the other hand, we have “repeatedly held that a
plaintiff need not prevail on her Title VII discrimination
claim or have opposed an action that in fact violated Title
VII to win a retaliation claim.” Fine, 305 F.3d at 752. Statuto-
ry protection “is not lost simply because an employee is mis-
taken on the merits of his or her charge” or “if an employee
drafts a complaint as best he or she can but does not state an
effective legal claim.” Mattson, 359 F.3d at 892.
2.
We now review Mr. Brooks’s statements cited in his
April 25, 2016 reprimand letter. At issue were Mr. Brooks’s
statements (1) that the City of Kankakee was under a “con-
sent decree,” (2) that a police officer crashed his car and
nothing was done about it, and (3) that a police officer was
caught using illegal drugs and that he was not disciplined.
We review each statement in turn and the evidence present-
ed to the jury.
Testifying before the EEOC in 2014, Mr. Brooks claimed
that the Department was subject to a “consent decree.”
Mr. Brooks submits that his references to a “consent decree”
were not “utterly baseless” or “completely groundless,” and
that his speech before the EEOC is explicitly protected by
Title VII’s antiretaliation provision. Instead, he was simply
24 No. 20-1395
mistaken, as he was actually referring to the Agreed Judg-
ment Order that concluded the Baptist litigation.
At trial, the jury also heard testimony from Chief Regnier
explaining why references to a “consent decree” were par-
ticularly disparaging to the Department; such references
suggested that the Department was investigated by the U.S.
Department of Justice for repeated civil rights violations.
The City also presented testimony that multiple officers on
multiple occasions had told Mr. Brooks that there was no
consent decree. Mr. Brooks denied this at trial. Further, Chief
Regnier testified that the Agreed Judgment Order, which
Mr. Brooks claims to have been referencing in his 2014 and
2016 statements, expired in 2011.
At the Mayor’s office, Mr. Brooks alleged that, in 2012,
Officer Berge “had crashed a car, lied about the car crash,
37
and then made a false police report.” He further stated that
the City had ignored Officer Berge’s wrongdoing and in-
stead promoted him. Mr. Brooks maintains that, because his
2016 statement triggered the investigation into Officer
Berge’s 2012 car crash, his statement was “the opposite of
38
‘baseless.’” At trial, Mr. Brooks admitted that he knew
about Officer Berge’s car crash and false police report in 2013
but did not inform anybody of this information until he told
the Mayor in 2016.
Both Chief Regnier and Lieutenant Passwater testified
that Mr. Brooks had made statements regarding a cover-up
37 Appellant’s Br. 22.
38 Id. at 23.
No. 20-1395 25
prior to 2016 but had refused to provide any names. Lieu-
tenant Passwater testified that he told Mr. Brooks that De-
partment rules and regulations required officers to report
known misconduct to the administration. Chief Regnier tes-
tified that he knew nothing of Officer Berge’s misreporting
of the car crash when he promoted Officer Berge. Once Chief
Regnier received the investigation report, he had considered
firing Officer Berge, but decided that, because the car crash
had occurred many years ago and kept under wraps for so
long, there was a good chance that Officer Berge would get
his job back through the appeals process, even if he was ter-
minated. Instead, Chief Regnier opted for a thirty-day sus-
pension and a last-chance agreement, under which Officer
Berge agreed that any further misconduct would be grounds
for immediate termination.
Finally, Mr. Brooks made statements at a Kankakee Po-
lice and Fire Commission public meeting that Officer Berge
was caught using drugs, was promoted to sergeant, and that
nothing ever happened to him. Mr. Brooks insists that his
“accurate complaint about lenient treatment for a white
39
co-worker cannot fairly be described as ‘baseless.’”
Chief Regnier and Lieutenant Passwater, however, testi-
fied that Mr. Brooks has publicly and repeatedly alleged that
nothing ever happened to Officer Berge as a result of his mis-
conduct, and that it was this assertion that disparaged the
Department. Chief Regnier testified that Officer Berge was
publicly passed over for promotion, despite securing the top
spot on the 2011 List. Chief Regnier instead promoted Mi-
39 Id. at 24.
26 No. 20-1395
chael Sneed, an African American officer. In addition, Chief
Regnier sanctioned Officer Berge with a thirty-day unpaid
suspension, the largest unpaid suspension Chief Regnier
could issue short of termination. He also sent Officer Berge
to treatment and subjected him to eighteen months of peri-
odic drug testing.
The jury was entitled to conclude that each of
Mr. Brooks’s statements included varying degrees of factual
falsehoods. The credibility and motivations of the disputes
between Mr. Brooks and the City’s witnesses were the very
reason for a jury trial. The jury was entitled to believe or dis-
believe all or portions of Mr. Brooks’s or any of the witness-
es’ testimony. A jury could very reasonably conclude that
there was no basis for stating that the Department was vio-
lating its consent decree; that Mr. Brooks deliberately em-
ployed the term “consent decree” to invoke negative conno-
tations; and that he knew, but did not share, that the consent
decree had expired many years prior. With respect to the al-
leged cover-up, a reasonable jury could conclude that
Mr. Brooks knew about and intentionally did not disclose
the information and therefore was, himself, involved in cov-
ering up Officer Berge’s car crash. The jury could have con-
cluded that his refusal to divulge information earlier indicat-
ed his lack of good faith. Finally, a reasonable jury could
conclude that Mr. Brooks did more than simply complain
about lenient treatment of a white co-worker. Rather, it
could reasonably conclude that Mr. Brooks falsely and pub-
licly alleged that nothing happened to Officer Berge. We
therefore agree with the district court’s conclusion that a
reasonable jury, following the court’s instructions, could
conclude that Mr. Brooks’s statements were not protected
No. 20-1395 27
and with its denial of Mr. Brooks’s motion for judgment as a
matter of law.
B.
We next turn to Mr. Brooks’s request for a new trial on
the ground that the jury instructions included a misstate-
ment of the law. He submits that the jury instructions incor-
rectly required that the jury find that he made all three state-
ments set out in the letter of reprimand in good faith. Rather,
he submits, the jury should have been instructed that if it
found any one of the three statements was made in good faith
it could find that the letter was issued in retaliation and vio-
lated the retaliation prohibition of Title VII.
The principles governing our evaluation of this submis-
sion are well settled. We review de novo a district court’s
choice of jury instruction when the underlying assignment of
error implicates a question of law. Fabick, 944 F.3d at 655 (cit-
ing Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc.,
831 F.3d 815, 835 (7th Cir. 2016)). “In crafting jury instruc-
tions, however, the district court is afforded substantial dis-
cretion, and we will reverse only if it failed to state the law
completely and correctly and the error caused prejudice.” Id.
(quoting Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d
841, 846 (7th Cir. 2014)).
With these standards in mind, we now consider (1)
whether the instruction inadequately stated the applicable
law; and (2) whether that “error likely confused or misled
28 No. 20-1395
the jury causing prejudice” to Mr. Brooks. Gile v. United Air-
lines, Inc., 213 F.3d 365, 375 (7th Cir. 2000). 40
1.
We first assess whether the district court erred when it
told the jury that it had to find that Mr. Brooks made all three
statements in a reasonable, good-faith belief that the Kanka-
kee Police Department was treating a white officer better
than officers of other races. We evaluate the “jury instruc-
tions in their entirety when determining whether they
properly informed the jury of the applicable law.” Schobert v.
Ill. Dep’t of Transp., 304 F.3d 725, 730 (7th Cir. 2002) (citing
Reed v. Union Pac. R.R. Co., 185 F.3d 712, 715 (7th Cir. 1999)).
The instructions need not be perfect, but they “must be cor-
rect legal statements and supported by the evidence.” Id.
(citing Jaffee v. Redmond, 51 F.3d 1346, 1353 (7th Cir. 1995)).
The letter of reprimand stated that Mr. Brooks had made
three independent statements that had cast the police de-
partment in a bad light. The district court told the jury that,
in order to conclude that the issuance of the reprimand letter
was a retaliatory act, Mr. Brooks had to establish that he
made each of the statements in good faith. In other words,
he had to establish that his statements to the EEOC and his
40 We are satisfied, from our examination of the record, that Mr. Brooks
has preserved his jury instruction objection that the jury was incorrectly
instructed that he was required to prove that all three statements were
made in good faith. See Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 729
(7th Cir. 2002) (noting that to preserve an objection, “the party must state
the same grounds when objecting to the jury instruction as it does in its
motion for a new trial or on appeal” (citing 9A Charles A. Wright & Ar-
thur R. Miller, Federal Practice & Procedure 2d § 2254 (2d ed. 1997))).
No. 20-1395 29
statements at the Mayor’s office and his statements at the Po-
lice and Fire Commission meeting were all based on a rea-
sonable, good-faith belief. The district court explained that,
because there was a “unitary reprimand letter” that “explic-
itly referenced [the] three instances,” the jury had to find
that Mr. Brooks “spoke[] in good faith as to all three com-
41
plaints.” “If the jury were instructed otherwise,” the court
continued, “Defendant could be found liable even though
Plaintiff did not have a good faith basis for one, or even two,
42
of his statements.” The court also concluded that
Mr. Brooks’s proposed instruction would create a but-for
causation problem. It reasoned that because the reprimand
letter was written because of all three statements, “if any one
or more of Plaintiff’s statements was not made in good faith
43
then Plaintiff would fail the but-for causation test.”
We respectfully must conclude that the district court
misapprehended the task before it. There is no question, of
course, that “Title VII retaliation claims require proof that
the desire to retaliate was the but-for cause of the challenged
employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 352 (2013). Here, Mr. Brooks alleges that issuance of
the reprimand letter was a retaliatory act. It is that act—the
issuance of the letter—that must meet the standard of Nassar.
By contrast, the district court confronted a distinctly differ-
ent question in crafting the instructions: It had to instruct the
41 R.54 at 12.
42 Id.
43 Id.
30 No. 20-1395
jury to decide whether the City’s characterization of the let-
ter as a legitimate disciplinary measure was worthy of belief.
As the district court acknowledged, and the City reiterates,
44
“the letter was written because of all three statements” and
“thus would not have been issued if Brooks had made only
45
one or two statements.” If the jury found that Mr. Brooks
made one of the three statements in good faith, it would then
be entitled to conclude that the letter was not a legitimate
disciplinary measure.
In short, the district court’s instruction was not tailored
to the proof at trial or to the positions of the parties. No one
contended that a reprimand letter would have been sent if
one of the three instances mentioned in the letter had been
done in good faith. Because only one of the three instances
had to have been in good faith, the district court instructed
the jury to find more than legally required; in effect, the dis-
trict court held Mr. Brooks to proving three acts of retaliation
to prevail.
2.
Even when a jury instruction is erroneous, we will grant
a new trial only if the error prejudiced the complaining par-
ty. Kuberski v. REV Recreation Grp., Inc., No. 20-3127, 2021 WL
3076749 (7th Cir. July 21, 2021). “This is true even for ‘patent-
ly incorrect’ instructions.” Id. at *4 (quoting Gile, 213 F.3d at
375). To determine if the complainant has suffered prejudice,
“we view the evidence as a whole to determine whether the
44 Id.
45 Appellee’s Br. 29.
No. 20-1395 31
jury could have reached a different outcome had the instruc-
tions been correct.” Id. Even in cases where the erroneous
jury instruction caused a party to bear a heavier burden, we
have held that no prejudice occurred when the evidence was
so weak that it would have failed under either burden. See
id. at *4–5 (finding no prejudice because plaintiff’s own con-
duct prevented him from establishing breach of warranty,
regardless of whether the jury was instructed on a higher or
lower standard); Boyd v. Ill. State Police, 384 F.3d 888, 895–96
(7th Cir. 2004) (finding no prejudice as evidence of race dis-
crimination was so thin that “even if proper instructions had
been given,” plaintiffs failed to show that race was “a factor
at all”).
The evidence presented at trial fails to show that
Mr. Brooks would have prevailed even if the jury had un-
derstood that he had to prove only one of the statements was
made in good faith. As we stated earlier, every one of
Mr. Brooks’s statements included varying degrees of factual
falsehoods, and the jury was entitled and reasonable in dis-
believing his testimony.
Mr. Brooks submits that his references to a “consent de-
cree” were good-faith mistakes. But even if Mr. Brooks in
good faith mistakenly referred to the “Agreed Judgment Or-
der” as a “consent decree,” his statement, read as a whole,
was unreasonable. The Agreed Judgment Order created a
committee to review the Kankakee Police Department’s hir-
ing and promotional testing policies. Mr. Brooks’s references
to the City violating a “consent decree” were not based in
any reasonable allegation of discriminatory hiring or promo-
tions. Mr. Brooks’s focus on the mix-up between the two
types of documents misses a more important point, that the
32 No. 20-1395
Agreed Judgment Order expired in 2011. Yet, Mr. Brooks, in
2014 and 2016, continued to invoke this document to suggest
that the City was in violation of the order, when he, because
of his involvement, knew that this was not the case.
As to the statements in the Mayor’s office, by not disclos-
ing Officer Berge’s alleged cover-up for three years,
Mr. Brooks was not acting in good faith. Indeed, Mr. Brooks
violated Department policy by not disclosing this infor-
mation earlier. Finally, Mr. Brooks publicly alleged that an
officer had been caught using drugs and driving drunk, that
he did not receive any discipline, and that he was still pro-
moted to sergeant, in violation of a “consent decree.” By the
time of the Police and Fire Commission meeting, Mr. Brooks
was told on multiple occasions that there was no such “con-
sent decree.” His later references therefore cannot be consid-
ered good-faith mistakes. Further, his allegations that white
officers were treated better and even promoted after serious
disciplinary infractions were made without any sort of com-
parator. To the degree that Mr. Brooks is presenting himself
as the comparator, he never qualified for a promotion: he
never ranked within the top three qualifying spots. In mak-
ing such statements, Mr. Brooks failed to establish any rea-
sonable opposition to a violation of Title VII.
We conclude that the evidence of either good faith or rea-
sonableness in making these statements was so lacking that a
proper jury instruction would not have made a difference in
the outcome. Because Mr. Brooks cannot demonstrate preju-
dice from the erroneous instruction, he is not entitled to a
new trial.
No. 20-1395 33
C.
We finally turn to the district court’s dismissal of
Mr. Brooks’s disparate impact claim. Mr. Brooks attempted
to raise a disparate impact claim with respect to the
oral-examination component of the promotion process. We
review a district court’s denial of a motion to amend the
complaint for abuse of discretion. Shanahan v. City of Chicago,
82 F.3d 776, 781 (7th Cir. 1996).
There was no abuse of discretion here. The disparate im-
pact claim that Mr. Brooks sought to append to his com-
plaint through his reply to the City’s summary judgment
motion is far more than a new theory based on the same
facts. It is an entirely new cause of action never before men-
tioned in the litigation and requiring a factual development
very different from that needed for the retaliation by failure
to promote claim. Retaliation is specific to Mr. Brooks and
the statements Mr. Brooks made; disparate impact is general
to a protected status and therefore requires distinct facts that
were not alleged until his summary judgment response. The
facts required for a disparate impact claim—a facially neu-
tral policy and an adverse impact based on a protected fac-
tor—are entirely missing from Mr. Brooks’s complaint.
Moreover, the facts of record here, including the promotion
of African American officers to forty percent of the sergeant
positions in the last three rounds of promotional testing,
hardly provide the basis for a disparate impact claim.
Mr. Brooks therefore failed to put the City on notice of his
separate claim.
34 No. 20-1395
Conclusion
The district court properly denied Mr. Brooks’s motions
for judgment as a matter of law and for a new trial. It also
properly rejected his attempt to introduce a disparate impact
claim at the summary judgment stage. We therefore affirm
the judgment of the district court.
AFFIRMED